Gould v. Lynn
| Decision Date | 09 December 1930 |
| Docket Number | 6681. |
| Citation | 293 P. 968,88 Mont. 501 |
| Parties | GOULD et al. v. LYNN. |
| Court | Montana Supreme Court |
Appeal from District Court, Carbon County; O. F. Goddard, Judge.
Action by J. C. Gould and the Antler Hotel against Ted Lynn. From an adverse judgment, plaintiffs appeal.
Reversed and remanded for a new trial.
C. C Rowan, of Red Lodge, for appellants.
John G Skinner, of Red Lodge, for respondent.
In this case the plaintiff seeks to recover money alleged to have been loaned to the defendant on June 26, 1929, aggregating $820. Originally the plaintiff commenced four separate actions in the justice court of Red Lodge township in Carbon county to recover the amount claimed by the plaintiff; each of such actions being within the jurisdictional limit of a justice court. The defendant answered the complaints in each of such actions, denying the indebtedness, and by way of affirmative defense averred that the transaction out of which the alleged indebtedness of the defendant to the plaintiffs arose was one of gambling, therefore unlawful, and that the plaintiffs, by reason thereof, cannot recover. And, by way of cross-complaint, the defendant sought the recovery of $40 in cash paid to the plaintiff Gould by the defendant during the progress of the alleged gambling game. Judgment in each of these cases was duly made and entered in favor of the plaintiff for the full amount sought to be recovered. The defendant thereupon appealed to the district court from each of such judgments, and the appeals in the district court were consolidated under authority of section 9820, R. C. 1921. Upon trial to a jury in the district court on November 9 1929, verdict was in favor of the defendant, upon which judgment was accordingly duly entered, and the plaintiffs have therefrom appealed to this court. The plaintiffs made a motion for a new trial, based upon newly discovered evidence, among other reasons stated, which was denied by the court.
The plaintiffs' specifications of error raise but one question necessary to be discussed and determined in disposition of this appeal, namely: (1) Did the court err in denying the plaintiffs' motion for a new trial?
On the trial, the evidence was in sharp conflict as to whether the alleged indebtedness was contracted in connection with a gambling game (craps) played by the defendant with the plaintiff Gould, as a result of which, to cover losses, the defendant executed and delivered seven checks on the American National Bank of Bridger, aggregating $820, payment of which was stopped by the defendant at the bank before they were presented for payment. The plaintiff Gould testified that the checks were by him cashed upon presentation to him by the defendant at his (Gould's place) of business (the Antler Hotel), and he denied having participated in any gambling game with the defendant, as a result of which the checks were issued, or at all. Gould's testimony is to the effect that he was at his place of business, the Antler Hotel, in Bridger, the night of June 26, 1929, and the defendant called there at least seven times that night, and had him cash as many checks, aggregating the total of $820, and that the defendant was well known to the plaintiff Gould, and was then, and had theretofore been for some time, engaged in the restaurant business directly across the street from the plaintiff's hotel. He further testified that he understood that the defendant was at his restaurant engaged in a gambling game on the night of June 26, 1929, with a man by the name of Gates, who was registered as a guest at the Antler Hotel, and that the defendant had lost money in such game.
On the contrary, the defendant testified that on the night in question he engaged in a gambling game of craps with the plaintiff Gould in the rear of the defendant's restaurant, and in consequence lost to the plaintiff Gould the sum of $40 in cash, and additionally $800 represented by the checks in evidence. As to one of the seven checks for the sum of $20, it is admitted by both parties that that amount was advanced by the plaintiff to the defendant in order that the defendant might have money on hand with which to open his place of business the morning following.
In support of the plaintiff's motion for a new trial, Gould filed the affidavits of three additional witnesses whose testimony he considered important in establishing his case against the defendant, and in this connection his own affidavit showing that he had just learned (November 27, 1929) of the testimony which the additional witnesses would give in the case, and that be would produce them as witnesses if granted a new trial.
The affidavit of Frank Hoffmann is to the effect that he is well acquainted with a traveling man, who sells...
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